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Rights Watch: Public education wins big time. Again.

Vouchers are dead. At least in the state of Florida.

In a stunning rebuke to Governor Jeb Bush, the Florida Supreme Court ruled on January 5 that his highly touted voucher program for K–12 students violates the Florida Constitution.

“The Florida ruling is a clear win for students, parents, and public schools. It left no doubt that vouchers take resources, focus, and attention away from our neighborhood schools,” stated NEA President Reg Weaver.   

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The Florida program had been the first and only statewide voucher scheme in the country.  The court’s vote was not close: 5–2, with two Bush appointees dissenting.   

The Florida Supreme Court based its decision on the “education clause” of the state constitution, which requires the state to maintain a “uniform…system of free public schools.”

The voucher scheme, the court said, violates this provision in two different ways. First, it “diverts public dollars” to private schools, contrary to the requirement that the state fund only “public schools.” Moreover, “because voucher payments reduce funding for the public education system,” the voucher program “by its very nature undermines the system of ‘high quality’ free public schools” mandated by the constitution. 

Significantly, the court also held that the program runs afoul of the “uniformity” requirement because private schools— unlike public schools—are not bound by state standards and are not subject to public oversight or accountability. While public school teachers, for example, must be college graduates with at least a 2.5 GPA, pass a rigorous state certification process, and submit to criminal background checks, private school teachers are exempt from such requirements.

   Likewise, while Florida law imposes tough curriculum standards on the public schools, spells out specific subjects that must be taught, and requires the state to “hold schools accountable” for failure to comply, it explicitly denies to the state any power “to regulate, control, approve, or accredit private educational institutions.”

   “This court got it exactly right,” said NEA General Counsel Bob Chanin, lead counsel in the protracted litigation. “Public schools have standards and accountability, but private schools don’t. And because they don’t, public money should not be used to fund them.” 

About 750 students used vouchers to attend some 47 private and religious schools in 2005–06. The court’s order allows those students to complete the academic year in their current schools, after which the voucher program will be shut down. 

Foes of public education have complained that the decision forces voucher students back into the “failing public schools.” Appearing on CNN, Ron Meyer, general counsel of the Florida Education Association, responded that any student assigned to a poor performing public school has “the absolute right to transfer to a high performing public school.

“What we need to be doing,” Meyer added, “is fixing the public schools. We don’t need to be draining dollars away.  There aren’t enough dollars now.”

This latest court victory comes on the heels of a 2004 ruling by the Colorado Supreme Court striking down that state’s voucher scheme. In a lawsuit sponsored by NEA and the Colorado Education Association, the court declared that the program violated a provision of the Colorado Constitution guaranteeing “local control” of education. 

By requiring Colorado school districts to channel part of their “locally-raised funds” to voucher schools, the program “stripped” local districts of their right to determine how to best educate their students, the court held.

The Florida case is now over. Because the court based its decision on the state constitution, there is no basis for an appeal to the U.S. Supreme Court. The only way to overturn the decision would be by amending the Florida State Constitution, which most political observers deem highly unlikely.

Even though the decision is not a legally binding precedent in any other state, it still could be useful in challenging voucher programs that might be enacted elsewhere. That’s because many state constitutions have education clauses containing language similar to Florida’s, and the court’s legal reasoning is quite persuasive.

But the court’s opinion is also noteworthy for its eloquent paean to the value of education, quoting Thomas Jefferson—

“If a nation expects to be ignorant and free…it expects what never was and never will be,” as well as Brown v. Board of Education—“[Public education] is the very foundation of good citizenship.”

Read the court’s decision, Bush v. Holmes.

Michael D. Simpson
NEA Office of General Counsel

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